How social media is changing defamation law

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Social media has radically changed the way people receive and share information or opinions about one another. Unfounded statements on the Internet can enter the mainstream in a viral moment, as seen in a recent series of high-profile cases that use defamation law to fight online misinformation and untruths.

Hosted by Northwestern Pritzker School of Law and the Medill School of Journalism, Media, Integrated Marking Communications, a panel, “How is Social Media Changing Defamation Law?” was held recently in recognition of the 60th anniversary of the 1965 U.S. Supreme Court decision New York Times Co. v. Sullivan, which revolutionized libel law. The historic ruling determined that freedom of speech protections restrict the ability of public officials to sue for defamation.

In two recent defamation cases, that of E. Jean Carroll against former President Donald Trump and the case brought by two election workers against Rudy Giuliani, juries awarded a total of more than $230 million to people whose lives were turned upside down by — in these cases — the public figures themselves and their followers on social media.

“(These cases are) not an attempt to silence the truth, a concern that animated Sullivan, but to use liable suits to silence the lying that was taking place online and elsewhere,” said senior vice president and deputy general counsel at the New York Times Company David McCraw, who moderated the panel.

All Northwestern alumni, the featured panelists served as counsel in the Carroll v. Trump and Freeman v. Giuliani cases: Shawn G. Crowley ’06, partner at Kaplan Heckler & Fink; Meryl Governski ’04 MS, partner at Willkie Farr & Gallagher; Michael Gottlieb ’99, partner at Willkie Farr & Gallagher; and Ashlee Humphreys ’03, ’08 Ph.D., associate professor of integrated marketing communications at Medill, who testified as an expert on reputational damage to plaintiffs in both trials.

Author E. Jean Carroll sued Donald Trump for defamation after he accused her of lying in her 2019 memoir that he had sexually assaulted her. She won more than $88 million in two separate suits.

“When the president speaks, the world listens, especially a president who has access to Twitter,” said Crowley, the lead attorney in Carroll v. Trump. “The statement that Carroll was lying to sell books, that spread all over the world very, very quickly. (Carroll) immediately started getting hate mail, death threats and horrible messages which have continued for the last five years.”

Gottlieb and Governski were the lead counsel on the Freeman v. Giuliani case, brought by election workers Ruby Freeman and Shaye Moss who sued Rudy Giuliani for defamation – after deliberately spreading lies that they committed election fraud. 

Gottlieb compared what happened to his clients to the notoriety of being famous, but not having access to the power or money to deal with it.

“Imagine all the stuff that a celebrity has to deal with, the bad stuff they have to deal with, and then imagine that they had no money, no power or no authority to deal with it,” he said.

Humphreys said there is a unique challenge in quantifying harm done to a plaintiff that is not famous or of notoriety.

“When a famous person sues for defamation, they have existing reputations that can be quantified by the movie deals that they’ve missed out on or other work that was taken away,” she said. “But we all have reputations, so how do you come up with a number?”

As an expert witness, Humphries based damages on the number of people who see the defamatory content online, factor in impressions to capture how widely it spread, and assess its impact.

“All of this affects a person’s reputation in the world, famous or not,” she said.

Even in light of these high-profile settlements, Gottlieb says he doesn’t think it will stop the political theatre of spreading lies, but the attacks may become less specific.

“I hope that at least people who are engaged in the sport of politics this year will take that message that there’s a way to do this and say all the same stuff you want to say without destroying civil servants in the process.”

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